Clear The Bench Colorado and this year’s Colorado judicial retention elections - along with the subsequent selection of Justice Michael Bender (who was retained in office with the lowest percentage approval in state history) as the next Chief Justice of the Colorado Supreme Court - continue to garner significant media coverage in the weeks following this year’s historic elections.

Numerous articles across the country continue to weigh in on the subject of judicial retention elections in general, with mention of the successful effort to oust incumbent state supreme court justices in Iowa and coverage of other statewide efforts which fell short (including our neighbor to the east, Kansas, and of course in Colorado).

Many of the articles note that this year’s judicial retention elections may be the harbinger of a real paradigm shift in how the public views judges on the ballot, with a growing movement to hold judges - particularly the more politicized and politically-active state supreme court justices - accountable.

Clear The Bench Colorado noted several of the relevant articles in our Post-Election Media Review post just after the elections, and in our last week’s post (”A New Era for Judicial Retention Elections?“) and most recently “A Tale of Three States” (comparing the judicial retention elections and outcomes in Iowa, Kansas, and Colorado) last Friday.

Judicial retention elections this year may well have been the most significant underreported political story of the year, with opposition and accountability efforts mounted in more states than ever before - which has some defenders of the status quo legal establishment worried.

A recent article published in The Palm Beach Post News (”Florida judges may be on political hot seat“) profiled the campaign to unseat two Florida Supreme Court justices against the backdrop of similar efforts nationwide:

Using e-mails, websites and YouTube videos, conservative groups waged a stealth campaign against Florida Supreme Court Justices Jorge Labarga and James Perry.

And some legal watchers are worried.

Among the “worried” legal watchers quoted in the article: former Colorado Supreme Court justice Rebecca Love Kourlis (executive director of the Institute for the Advancement of the American Legal System, IAALS, which is the subject of a campaign finance complaint for their electioneering activities in support of Colorado’s incumbent justices this year).

“I think we’re going to see it more and more,” she said. “Retention elections around the country are becoming the new battleground.”

Colorado Supreme Court Goes on a ‘Bender’

The other significant news in the aftermath of this year’s judicial retention elections was the selection of Justice Michael Bender as the next Chief Justice of the Colorado Supreme Court.

As previously noted, Justice Bender - a close political ally and ideological inheritor of the mantle of outgoing Chief Justice Mary Mullarkey, who resigned rather than face the voters this year - retained his office by the narrowest margin in Colorado history for an incumbent state supreme court justice (along with his colleague, and ideological ally, Alex Martinez) less than a week earlier.  His retention in office was supported by an organization (the Institute for the Advancement of the American Legal System, IAALS) in which he sits on the board (potentially violating the judicial code of conduct); the group is also the defendant in a pending campaign finance law violation case, which the group’s attorneys recently obtained a delay in bringing to a hearing (originally set for 12 November 2010).

Numerous media outlets around the state noted the selection of Bender for the Chief Justice slot with varying degrees of detail, including:

• Denver Post (”Michael L. Bender to lead Colorado’s top court“)
• Durango Herald (”Colorado Supreme Court names Michael Bender new chief justice“)
• Grand Junction Sentinel (”Bender to lead Colo. Supreme Court“)
• Pueblo Chieftain (”Bender to lead Supreme Court“)

An interesting addition to the list of mainstream media outlets commenting on the appointment was the left-wing political gossip site Colorado Pols.  Normally I wouldn’t credit this collection of closed-minded chatty-kathies (literally; outside comments on the gossipy back-and-forth snark that passes as political discussion on the site are not allowed) with a link, but the insight provided by their reaction to the news (and partisan spin on it) along with their take on the significance of Bender’s appointment for the upcoming legislative reapportionment and Congressional redistricting battles (the Pols consensus view, with which I agree, is that it bodes VERY well for their side) is illuminating.

Stay tuned for more on that subject…

Although this year’s campaign (and election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Either the Colorado Supreme Court Chief Justice has been afflicted by the same highly contagious epidemic of political figures “wishing to spend more time with their family” as befell Governor Ritter, or there’s something else afoot…

Those journalists willing and able to look deeper than the retirement announcement intended for public consumption didn’t have too far to dig.  Reporter Joe Hanel of the Durango Herald (Denver bureau) was the first to contact Clear The Bench Colorado for comment; in his article on Mullarkey’s announced retirement (”Colorado’s Chief Justice set to retire“) he noted:

Under Mullarkey’s leadership, the court issued a series of rulings that limited the effect of the Taxpayer’s Bill of Rights.

She wrote the 2009 opinion in Mesa County Commissioners v. State of Colorado, which upheld Ritter’s plan to freeze school property taxes without a vote of the people.

The ruling… opened the door for 11 bills that repealed tax credits and exemptions in the 2010 legislative session.

Matt Arnold is running a campaign to get voters to turn out four Supreme Court justices this November, when they face their once-in-a-decade retention votes. Mullarkey was one of the four.

“One down, three to go,” Arnold said.

In addition to the TABOR cases, conservatives chafed at rulings that kept an illegal-immigration measure off the ballot and created a congressional district map favored by Democrats.

“She hasn’t followed the constitution in years in her judgments,” Arnold said.

The Denver Post’s otherwise reasonably balanced article on Chief Justice Mullarkey’s announced retirement (”Mullarkey, chief justice of Colorado Supreme Court, stepping down” by political reporter Jessica Fender) contained only an oblique reference to the fact that “[H]er decision to step down comes amid a vigorous campaign by critics to persuade voters not to retain her on the court in November.”  Apparently in deference to what seems to be official Denver Post policy (possibly related to the Post’s unwillingness to offend the sensibilities of their largest tenant and source of rent revenue), the name of the organization mounting the “vigorous campaign” is not mentioned.

Other print media also opted not to delve beyond the surface and were similarly circumspect in their commentary, including the Grand Junction Sentinel (”Mullarkey has earned much criticism during the past year“) and the Pueblo Chieftain (”Supreme Court and its decisions came under fire“); several other newspapers appeared to have simply reprinted the press release, leading one to question whether investigative journalism is completely dead.

Well, not quite - as these excerpts from an excellent article on the Mary Mullarkey Retirement by Westword’s Michael Roberts (published Friday) demonstrate:

During yesterday’s announcement about her intention to retire in November, Colorado Supreme Court Chief Justice Mary Mullarkey said a vigorous campaign against her and three other justices had nothing to do with her decision.

That’s Mullarkey malarkey, counters Matt Arnold of ClearTheBenchColorado.org, the organization spearheading the Supreme crusade.

“Any claim that this has nothing to do with my campaign is whistling in the wind,” Arnold says.

…

…there’s no denying that Arnold’s message is having an impact. But did it cause Mullarkey to surrender despite her insistence that factors like a new grandchild and her husband’s retirement motivated her decision?

Yes, Arnold believes. “It’s very clear she decided to step down because she knew she was facing a very tough retention election and would very likely be voted down — and she would go down in history as the first chief justice in the history of Colorado to be rejected by the voters. The writing was on the wall.”

In some ways, however, Arnold was disappointed by Mullarkey’s move.

“I think it’s important for voters to get involved,” he says. “If they step down, that’s obviously their decision. But it’s important for citizens to get engaged in this and realize how important it is. We not only have the right, but the duty and the responsibility to hold all officials accountable to their oath of office, whether they’re elected or appointed.

“Obviously, the preference is that the voters exercise their responsibilities and reject these people on the grounds that they’re not following the constitution. But it’s of great benefit for the citizens of the state for these anti-constitutionalist justices to leave the bench by whatever legal means, whether it’s retirement or being voted out.”

On area radio shows this weekend, numerous stations also noted the connection between Mullarkey’s announced retirement and the Clear The Bench Colorado campaign (podcasts forthcoming).

For the most part, television news lived up to it’s reputation for superficiality, merely noting the announced resignation with little comment or analysis, but panelists on the KBDI public affairs program Colorado Inside Out credited Clear The Bench Colorado with providing the impetus for the Chief Justice’s self-removal from the bench.  (Program aired Friday, with repeats set for Monday & Tuesday, podcasts to follow).

Chief Justice Mullarkey’s announced retirement does not change the fact that We The People need to finish Clearing the Bench - we must still exercise our right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on giving these unjust justices another 10-year term!

‘Cry Havoc’, and let slip the Dogs of War! that this foul deed shall smell above the earth…  (Shakespeare, “Julius Caesar”)

OK, we’re not quite talking about the Shakespearean dogs of war - but enemies of your constitutionally guaranteed right to vote on tax increases have been urging the pack of unjust justices that make up the Mullarkey Majority on the Colorado Supreme Court  “Sic ‘em!” on the Taxpayer Bill of Rights (TABOR) for quite some time - and their “foul deeds” certainly do “smell above the earth…”

The latest example of using the courts to take away your rights (instead of defending them) comes to us courtesy of an article (TABOR opponents use courts to defang amendment) in the Durango Herald earlier this week.  The article describes the oh-so-clever attempt by a Colorado trial lawyer to bypass or eliminate your merely “‘procedural’ rights to vote on tax increases” by using a court order to overrule the legislature and the citizens of our state.  If he wins,

“the Legislature would be under a court order to boost school funding. It would have to ask voters for a tax increase, because schools already eat up almost half the state’s tax revenue. If voters don’t approve, the court might have to give the Legislature the power to overrule the voters. That effectively would mean the end of TABOR.”

“Lots of people anticipate that, eventually, we may see this particular scenario,” the lawyer said.

The Colorado Supreme Court’s Mullarkey Majority has already laid the groundwork for this power grab by the courts in a ruling last October (Lobato v. State of Colorado) allowing the lawsuit to go forward, overturning lower courts that had held (correctly) that school funding decisions are a matter of policy - not law - and are therefore the job of elected legislators - not appointed judges - to decide.

Past Supreme Court decisions give him reason to be optimistic. Time and again, the court has limited the effects of TABOR.

In fact, over the past two decades since TABOR’s adoption, the Mullarkey Court has been relentlessly hostile to the Taxpayer’s Bill of Rights - ruling on every opportunity against TABOR (over 13 major cases - and counting) despite the clear language of the law directing that “Its preferred interpretation shall reasonably restrain most the growth of government.”

Most notoriously, the Mullarkey Majority on the Colorado Supreme Court blindsided voters by upholding the blatantly unconstitutional “Mill Levy Tax Freeze” (in reality, an escalating property tax increase) in the Mesa County Board of County Commissioners vs. State of Colorado case in March 2009, and also created a constitutional loophole allowing taxes to masquerade as “fees” (bypassing the voter approval requirement) in the “November Surprise” ruling in 2008 (enabling, among many other new ”fees“, the enormously regressive, unpopular, and painful FASTER Colorado Car Tax increase).

The court narrowly defined “tax-policy change” in the Mesa case, which opened the door for Gov. Bill Ritter to ask for several tax-break repeals this year, including a sales tax on candy and soda.

The mania for new “fees” to extract every last nickel and dime from Colorado citizens has become so pronounced that it’s difficult to even satirize - the reality is often more ridiculous.  Give us a break - “balancing the budget” with extra taxes on candy and soda?

Unfortunately, this relentless assault on our wallets - and our rights - is no laughing matter.  We have witnessed an accelerating erosion of our constitutional protections under the Mullarkey Court - left unchecked, it will only get worse.  MUCH worse.

“The ultimate goal is to figure out how to get rid of TABOR without a vote of the people,” said Sen. Greg Brophy, R-Wray, at a pro-TABOR meeting at the Capitol.

“TABOR… is the only line of defense between working families’ wallets and a massive increase in government spending…  Allowing citizens to vote on how much government they want and how much they are willing to pay for it” is the core of TABOR, without which those in government - such as the unjust justices of the Mullarkey Majority - would recognize NO LIMITS on their power and authority to take whatever they want, in pursuit of whatever goals they want; with YOUR money.

Don’t let the Mullarkey Majority take another bite out of your rights - put some teeth into your self-defense by exercising YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, instead of suffering rule by activist, agenda-driven “justices.”  Please help support Clear The Bench Colorado with your own comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices in 2010!